General Terms and Conditions

1. Scope of Application

1.1 These General Terms and Conditions (“GTC”) apply to all agreements between VIANOVA Finance GmbH, c/o consenso GmbH, Viaduktstrasse 42, 4051 Basel, Switzerland (“VIANOVA”), and its customers (each individually a “Customer”) concerning:
(a) the provision or delivery of software and applications (“Software”), the related documentation (“Documentation”) and/or other work products, whereby the Software, Documentation and other work products are collectively referred to as the “Products”;
(b) the granting of rights to use the Products; and/or
(c) the provision of development, support, maintenance and/or further development services and/or other services, collectively referred to as the “Services”.

1.2 These GTC form an integral part of every agreement entered into between VIANOVA and a Customer (each individually an “Agreement”). In the event of any conflict between the provisions of an Agreement and these GTC, the provisions of the Agreement shall prevail unless these GTC expressly provide otherwise.

1.3 General terms and conditions of the Customer shall apply only if VIANOVA has expressly accepted them in writing.

2. Quotations, Conclusion of Agreements and Amendments

2.1 Unless otherwise stated by VIANOVA, quotations issued by VIANOVA shall remain valid for two (2) weeks.

2.2 The Agreement between the Customer and VIANOVA shall be concluded upon the Customer’s signature, electronic acceptance or unequivocal confirmation by email of a quotation or Sales Order issued by VIANOVA, or upon both parties signing a separate Agreement in text form. If no Agreement is concluded in text form, the Agreement shall be concluded upon confirmation of the order by VIANOVA or upon VIANOVA commencing the provision of Services.

2.3 Either party may propose an amendment to the Services at any time by submitting the details of the proposed amendment to the other party in writing or by email.

2.4 If VIANOVA proposes an amendment, VIANOVA shall, together with the proposed amendment, inform the Customer of its impact on the price, schedule and resources.

2.5 If the Customer proposes an amendment, VIANOVA shall inform the Customer within a reasonable period, in writing or by email, of the feasibility of the proposed amendment and its impact on the price, schedule and resources.

2.6 If the Customer decides to proceed with the implementation of the proposed amendment, the amendment shall be implemented in accordance with these GTC and any supplements to the Agreement.

2.7 Unless otherwise agreed, VIANOVA shall continue its work in accordance with the Agreement while proposed amendments are being reviewed.

3. Subject Matter of the Agreement and Specification

3.1 The nature and scope of the Products and Services shall be agreed in the Agreement.

3.2 The characteristics and functionalities of the Products shall be defined in the product specification (“Specification”), which shall form an integral part of the Agreement.

3.3 Unless otherwise agreed, VIANOVA shall inform the Customer if VIANOVA uses open-source software or other third-party licensed products, collectively referred to as “Third-Party Products”, and shall specify the licence terms and/or manufacturer’s terms under which such Third-Party Products are made available to the Customer. If the Customer does not agree to the use of the relevant Third-Party Products, the Customer must notify VIANOVA in writing or by email within ten (10) calendar days of receiving such information.

4. Principles Governing the Provision of Services

4.1 VIANOVA shall provide the Services in compliance with the applicable statutory provisions and in accordance with the current state of science and technology.

4.2 Subject to Clause 21.4, VIANOVA shall be entitled to have the Services performed in whole or in part by suitable subcontractors. VIANOVA shall be liable for the conduct of such subcontractors as it is for its own conduct.

4.3 VIANOVA shall provide its Services through qualified and trained employees or subcontractors who possess an appropriate level of qualification for the work assigned to them.

4.4 If VIANOVA performs the Services in whole or in part at the Customer’s premises, VIANOVA shall observe the Customer’s operational practices and the safety regulations and house rules provided to VIANOVA.

5. Customer Cooperation Obligations

5.1 The Customer shall grant VIANOVA timely access to its premises and systems to the extent required for the provision of the Services. The Customer shall also provide VIANOVA, in a timely manner, with all information, data and materials required for the provision of the Services. VIANOVA shall be entitled to rely on the accuracy and completeness of the information, data and materials provided by the Customer.

5.2 The Customer shall be responsible for providing and maintaining the required end devices, including hardware, operating systems and network equipment, servers and connections required to access the Software, as well as for their security. The Customer shall ensure that their configuration and technical status comply with VIANOVA’s respective current requirements. The Customer shall use antivirus software that corresponds to the latest state of the art.

5.3 The Customer undertakes to inform VIANOVA proactively and without delay of any changes to the configuration of its IT systems and of any events that may be relevant to VIANOVA’s provision of the Services.

5.4 The Customer undertakes to designate at least one (1) technically competent employee as the central point of contact for VIANOVA.

5.5 The Customer acknowledges that VIANOVA’s provision of the Services depends on the timely and effective fulfilment of the Customer’s cooperation obligations and on the Customer making timely decisions and granting timely approvals in connection with the Products and Services. If a failure by the Customer to fulfil its cooperation obligations, or any other failure by the Customer to fulfil its obligations, affects VIANOVA’s performance of the Agreement, any deadlines shall be adjusted accordingly. VIANOVA shall also be entitled to charge the Customer, at VIANOVA’s customary rates, for any additional work attributable to such failure by the Customer.

5.6 If the Customer fails to provide any information, access, decisions, approvals, instructions, personnel, systems, data, materials or other cooperation required for the performance of the Agreement, or fails to respond to a reasonable request from VIANOVA within five (5) Business Days, VIANOVA may notify the Customer of such failure in writing or by email and grant the Customer a period of ten (10) calendar days to remedy it. If the Customer fails to remedy the relevant failure within this period:
(a) the Customer shall be deemed to be in material breach of the Agreement;
(b) VIANOVA may suspend the affected Products and Services and reallocate the personnel and resources reserved for the Customer;
(c) all dates, schedules and delivery periods shall be extended by the duration of the Customer-caused delay and by any additional period reasonably required by VIANOVA to remobilise the necessary resources;
(d) the Customer shall reimburse VIANOVA for all additional costs and expenses resulting from the delay, suspension, demobilisation, remobilisation or reallocation of resources; and
(e) VIANOVA may exercise its rights under Clauses 17.4 and 17.5.
The Customer’s failure to cooperate, unavailability, internal reorganisation, lack of budget, postponement of the project, change of priorities, failure to use the Products or Services, or failure to respond to VIANOVA shall not release the Customer from its payment obligations under the Agreement. Where the achievement of a contractual milestone is prevented or delayed solely or predominantly by a failure attributable to the Customer, the relevant milestone shall, for invoicing and payment purposes, be deemed achieved on the date on which it would reasonably have been achieved had the Customer complied with its obligations.

6. Conditions of Use

6.1 When using the Products, the Customer shall comply with the requirements set out in the Agreement and the Documentation in its then-current version.

6.2 Unless otherwise agreed, the Customer may not modify the Products, recover the source code of the Software through reverse engineering, decompilation or other methods, or copy the Software.

6.3 Under no circumstances may the Products be used unlawfully or for unlawful purposes, including the infringement of third-party intellectual property rights. The Customer shall indemnify VIANOVA against all costs incurred by VIANOVA as a result of such unlawful use. VIANOVA shall be entitled to delete unlawful data without further notice.

6.4 The Customer is also prohibited from granting unauthorised third parties access to the Products. The Customer shall implement the necessary security precautions to ensure that unauthorised third parties do not gain access to the Products. If a third party gains unauthorised access to the Products, the Customer shall notify VIANOVA immediately and shall assist VIANOVA in taking all legally permissible measures to protect VIANOVA’s interests. In particular, at VIANOVA’s request, the Customer shall immediately provide all information necessary to assert claims against the relevant third party.

6.5 In the event of a serious breach by the Customer of the conditions of use, VIANOVA shall be entitled to require the Customer, in writing or by email, to comply with the conditions of use. If the Customer commits a further serious breach of the conditions of use despite such request, VIANOVA shall be entitled to block the Customer’s access to the affected Products without prior notice. VIANOVA may also take action in accordance with Clause 17.4.

7. Documentation

VIANOVA shall provide the Customer with the Documentation in the agreed form, language and quantity. If the form, language and quantity of the Documentation are not specified in the Agreement, the Documentation shall be provided electronically in English.

8. Delivery

8.1 Delivery shall be deemed to have occurred when VIANOVA has made the Product available to the Customer, for example by activating access or delivering the Product, and has notified the Customer that the Product is ready for acceptance.

8.2 The point of delivery for the use of cloud-based software, referred to as “Software as a Service” or “SaaS Software”, and the associated data shall be the router output of the data centre operated by the hosting provider engaged by VIANOVA. The costs of internet access, including connection charges, shall be borne by the Customer. The availability and security of the internet connection shall be the sole responsibility of the Customer.

8.3 Unless otherwise agreed in the Agreement, the Customer shall be responsible for installing on-premises Software in its environment. If VIANOVA is responsible for installing on-premises Software under the Agreement, such Services shall be provided in accordance with these GTC.

9. Acceptance

9.1 For the purposes of these GTC, acceptance means the approval of a Product as performance in conformity with the Agreement, subject to any defects notified and their subsequent rectification.

9.2 The Customer shall inspect a Product submitted for acceptance for defects within thirty (30) calendar days after it has been made available or delivered (“Acceptance Period”) and shall accept Services that have been performed in accordance with the Agreement. At the Customer’s request, VIANOVA shall assist the Customer with the acceptance testing against payment. An acceptance report shall be prepared documenting the acceptance testing and its results. If no acceptance testing is performed, any defects must be reported in writing within the Acceptance Period.

9.3 If the acceptance testing reveals only minor defects that do not materially impair the functionality of the relevant Product, the Customer may not refuse acceptance. However, VIANOVA shall rectify the minor defects at its own expense within a reasonable period under the warranty provisions. If VIANOVA fails to do so, the Customer may request an appropriate reduction in price.

9.4 If the acceptance testing reveals material defects that materially impair the functionality of the relevant Product, VIANOVA shall use all reasonable efforts to rectify the defect at its own expense within a reasonable additional period under the warranty provisions and shall resubmit the Product to the Customer for acceptance. The Customer shall conduct a further acceptance test of the Product within another Acceptance Period of thirty (30) calendar days. If this acceptance test again reveals material defects that materially impair the functionality of the Product, VIANOVA shall endeavour to rectify the defect within a second reasonable additional period. Following rectification of the defect, the Customer shall inspect the relevant Product again within an Acceptance Period of thirty (30) calendar days.

9.5 If VIANOVA fails to rectify the defects within the second additional period, the Customer shall be entitled, by written notice, to:
(a) where reasonable for VIANOVA, grant VIANOVA a reasonable further period to rectify the defect and, if performance is again not rendered, exercise the rights set out in paragraphs (b) and (c) below;
(b) request a reduction in price; or
(c) withdraw from the affected part of the Agreement.
Recurring Services already provided during the term of the Agreement shall not be affected by such withdrawal and must be paid for by the Customer.

9.6 At VIANOVA’s request, the Customer shall provide VIANOVA, in electronic form, with the test data collected during an unsuccessful acceptance test.

9.7 If VIANOVA demonstrates that no defect existed, VIANOVA may charge the Customer for the work performed in connection with the alleged defect rectification at the remuneration rates agreed under the Agreement or at VIANOVA’s rates applicable to such Services, together with any costs and expenses incurred.

9.8 If Products have been approved or signed off by the Customer, or may be deemed accepted, at any stage of the provision of the Services in accordance with the provisions of the Agreement, VIANOVA shall be entitled to rely on such acceptance for all subsequent stages of the provision of the Services.

9.9 If the Customer fails to accept a Product within the Acceptance Period for a reason other than a material defect, the Product shall be deemed accepted upon expiry of the Acceptance Period. The Products shall also be deemed accepted if the Customer:
(a) fails to notify VIANOVA of material defects within the Acceptance Period;
(b) uses the Products operationally or otherwise deploys them in the course of its ordinary business operations; or
(c) accepts the Products despite deviations from the Specifications.
Any defects notified upon acceptance shall remain reserved.

10. Warranty for Defects

10.1 VIANOVA warrants that, at the time of acceptance, the Products shall conform in all material respects to the agreed Specifications and shall be free from all known viruses. For this purpose, VIANOVA shall use antivirus software corresponding to the latest state of the art.

10.2 The Customer acknowledges that VIANOVA cannot guarantee that the Software will be error-free or that it can be used without interruption. In particular, VIANOVA shall be entitled to suspend access to the Software for urgent maintenance work outside the agreed maintenance windows. VIANOVA also does not warrant that it will be able to rectify all errors.

10.3 Hidden defects must be reported to VIANOVA by the Customer no later than five (5) calendar days after their discovery. The warranty period shall commence upon acceptance and shall be six (6) months.

10.4 If VIANOVA is responsible for the defect pursuant to this Clause 10 and/or the Agreement and the Customer is not at fault, the defect shall be rectified without charge to the Customer in accordance with Clauses 9.3 et seq.

10.5 Any further warranty for defects is expressly excluded.

11. Warranty of Title

11.1 VIANOVA warrants that the Software does not infringe any third-party rights and that VIANOVA is entitled to grant the rights to the Software in accordance with the Agreement.

11.2 If a third party asserts claims against the Customer in connection with the Software on the grounds of an infringement of intellectual property rights, the Customer must notify VIANOVA in writing without delay, but no later than ten (10) calendar days after receiving the relevant third-party notice. Provided that the Customer notifies VIANOVA within the required period, authorises VIANOVA to have sole control over the conduct and settlement of the dispute and provides VIANOVA with all reasonable assistance, VIANOVA shall indemnify the Customer against such third-party claims and against the reasonable costs incurred by the Customer in connection with such claims. At VIANOVA’s discretion, VIANOVA shall:
(a) ensure the continued contractual use of the Software, with VIANOVA determining the appropriate measures. In particular, VIANOVA may obtain sufficient rights of use from the relevant third party for the benefit of the Customer or modify or replace the parts that infringe intellectual property rights without reducing the functionality of the relevant Product; or
(b) take back the relevant Product or block the Customer’s access to the Product and refund any fixed remuneration paid in advance for months that have not yet commenced.
Recurring Services already provided during the term of the Agreement shall not be affected and must be paid for by the Customer.

11.3 Any further warranty of title is expressly excluded.

12. Exclusion of Warranty

VIANOVA’s warranty and liability shall be excluded to the extent that defects in a Product are caused by:
(a) modifications to the Product made by the Customer;
(b) incorrect operation by the Customer or a user;
(c) the use of an outdated version of the Product;
(d) combination with products not provided by VIANOVA;
(e) failure to comply with the conditions of use;
(f) use of the Products by the Customer in a manner other than that permitted under the Agreement or by law;
(g) defects in Third-Party Products;
(h) malfunctions of software, end devices, servers, system components and/or the Customer’s system environment that occur without fault on the part of VIANOVA; or
(i) information, data or materials originating from the Customer.

13. Limitation of Liability

13.1 Both parties shall have unlimited liability for damage caused intentionally or through gross negligence and for death or personal injury.

13.2 In all other respects, to the extent permitted by law and subject to Clauses 13.1 and 17.5.9, both parties exclude all contractual and non-contractual liability, in particular liability for indirect or consequential damage, loss of profit, unrealised revenue, business interruption, production downtime, loss of data, reputational damage, third-party claims and consequential losses. Liability for auxiliary persons shall be excluded to the extent permitted by law.

13.3 To the extent permitted by law, VIANOVA excludes all contractual and non-contractual liability for direct and indirect damage in connection with Third-Party Products used by VIANOVA in accordance with Clause 3.3.

13.4 Under no circumstances shall VIANOVA be liable for the unlawful nature of content contained in data entered into the Software by the Customer or a user, or for any misuse of the Products by the Customer or a user. Furthermore, VIANOVA shall under no circumstances be liable for the Customer’s use of the Software’s source code and/or for any further developments by the Customer based on such source code, irrespective of whether or not the Customer is entitled to use the source code.

13.5 Subject to Clause 13.1, neither party shall be liable for damage caused by force majeure or unforeseeable restrictions imposed by public authorities.

14. Default

14.1 Unless expressly agreed otherwise, any schedules or dates contained in the Agreement shall not constitute fixed performance dates but shall merely represent planned commencement and completion dates for the Services to be provided under the Agreement.

14.2 If no deadline has been agreed for the performance of an obligation and the party responsible for performance does not perform the relevant obligation within a reasonable period, the other party shall grant that party two (2) reasonable additional periods within which to perform. If the obligation is not performed within those reasonable additional periods, the party responsible for performance shall automatically be in default. Any other agreements between the parties shall remain reserved.

14.3 If the parties have expressly agreed a deadline for the performance of an obligation and the party responsible for performance does not perform the relevant obligation within a reasonable period, the other party shall grant that party two (2) reasonable additional periods within which to perform. If the obligation is not performed within those reasonable additional periods, the party responsible for performance shall automatically be in default. Any other agreements between the parties shall remain reserved.

14.4 VIANOVA shall notify the Customer without delay if it becomes foreseeable that VIANOVA will be unable to meet an agreed deadline. In such a case, the parties shall agree on a new deadline by mutual consent.

14.5 If failure to meet a deadline is caused by the Customer, for example due to a failure to cooperate, incomplete Specifications or data, or unsuitable systems or processes, any deadlines shall be adjusted accordingly. Clauses 5.5 and 5.6 shall otherwise apply.

14.6 If VIANOVA is in default, the Customer may withdraw from the affected part of the Agreement. Recurring Services already provided during the term of the Agreement shall not be affected by such withdrawal and must be paid for by the Customer.

15. Rights of Use

15.1 All intellectual property rights in the Products shall belong to VIANOVA and/or its licensors. Unless otherwise agreed, no intellectual property rights in the Products shall be transferred to the Customer. If the Customer and VIANOVA jointly create intellectual property rights, each party shall grant the other an irrevocable right, unlimited in time and scope, to use and exploit such intellectual property rights independently, subject to compliance with the confidentiality obligations.

15.2 Unless otherwise agreed in writing, the Customer may not modify the Software, recover the Software’s source code through reverse engineering, decompilation or other methods, or copy the Software.

15.3 Subject to full payment of the agreed remuneration, VIANOVA grants the Customer a non-exclusive right to use the Products in accordance with the Agreement for the duration of the Agreement. The licence terms and/or manufacturer’s terms applicable to Third-Party Products shall remain reserved.

15.4 Unless otherwise agreed, the Customer shall not be entitled to grant its affiliated companies the right to use the Products in accordance with the Agreement. If the Customer is expressly authorised to grant its affiliated companies a right of use, the Customer shall remain VIANOVA’s sole contractual party and shall pay all remuneration arising from the use of the Products by the affiliated companies. The Customer shall otherwise be liable for all acts and omissions of its affiliated companies and their employees as it is for its own acts and omissions.

15.5 For the purposes of these GTC, “Affiliated Companies” means companies that:
(a) directly or indirectly control a party;
(b) are under the same direct or indirect control as a party; or
(c) are directly or indirectly controlled by a party.
For these purposes, a company shall be deemed to be controlled by another company if that other company holds more than fifty per cent (50%) of the voting rights in that company or is otherwise able to direct its affairs.

15.6 The Customer may not otherwise provide, transfer, sublicense or make the Products available to third parties in any other manner without VIANOVA’s prior written consent.

16. Prices and Payment Terms

16.1 The Customer shall pay the remuneration agreed in the Agreement.

16.2 The prices for the Products and the provision of Services shall be specified in the Agreement. Unless otherwise agreed, all prices are exclusive of value added tax, use tax, sales tax or similar taxes.

16.3 The fee for the use of the Products shall be agreed either as:
(a) a one-off fee covering the contractually agreed number of users for the agreed period;
(b) a fee payable at regular intervals for a specified usage period; and/or
(c) a unit price for a specified type of use.

16.4 Unless otherwise agreed in the Agreement, remuneration for the provision of Services shall be calculated on a time-and-materials basis. In addition, the Customer shall reimburse VIANOVA for all reasonable costs and expenses incurred in connection with the performance of the Agreement.

16.5 Unless otherwise agreed in the Agreement, quotation or Sales Order, VIANOVA shall invoice Products upon delivery. Fixed-price Services shall be invoiced in accordance with the payment or milestone schedule specified in the applicable Agreement, quotation or Sales Order. If no payment or milestone schedule has been specified, fixed-price Services shall be invoiced upon completion or delivery of the relevant Product or Service. Services provided at agreed hourly rates shall be invoiced monthly in arrears.

16.6 VIANOVA shall be entitled to adjust the agreed hourly rates and fixed remuneration annually, subject to sixty (60) calendar days’ prior notice, with effect from the beginning of a new calendar year. Price increases shall take effect on 1 January of each year. The Customer may terminate the affected Services with effect from the date on which the adjustment takes effect by giving notice within thirty (30) calendar days after the date on which the price adjustment is communicated.

16.7 Invoices shall be deemed approved unless the Customer disputes them in writing, stating objective and sufficiently detailed reasons, within ten (10) calendar days of the invoice date. Undisputed invoices shall be paid within thirty (30) calendar days of the invoice date unless another payment period is specified in the applicable Agreement, quotation, Sales Order or invoice.

16.8 If the Customer fails to meet its payment obligation in whole or in part, the Customer shall be in default without any further reminder. If the Customer is in default with the payment of remuneration owed, the Customer shall pay statutory default interest of five per cent (5%) per annum on the outstanding amount until payment has been made in full. Without prejudice to its other rights, VIANOVA reserves the right to suspend performance of the Agreement or terminate the Agreement as a consequence of the payment default.

16.9 The Customer may not set off any counterclaims against amounts owed to VIANOVA.

17. Term and Termination

17.1 The term and termination of the Agreement shall be specified in the respective Agreement.

17.2 If the Agreement contains no corresponding provisions, it shall be deemed to have been concluded for an indefinite period in respect of the continuing obligations governed by it.

17.3 Unless the Agreement is concluded for a fixed term and unless otherwise agreed, either party may terminate the Agreement in writing by giving six (6) months’ notice.

17.4 Either party shall be entitled to terminate the Agreement extraordinarily with immediate effect for good cause, in particular if:
(a) the other party materially breaches the Agreement and fails to remedy such breach within thirty (30) calendar days after receiving written notice, or within any shorter cure period expressly provided for in these GTC or the Agreement;
(b) the other party materially breaches the Agreement and the non-compliant situation cannot be remedied; or
(c) insolvency proceedings are opened against the other party, the other party declares itself insolvent or is insolvent, applies for a debt-restructuring moratorium, takes preparatory steps towards dissolution or liquidation, is otherwise dissolved with or without liquidation, or ceases all or a substantial part of its business activities.

17.5 Binding Orders and Consequences of Customer-Caused Termination

17.5.1 The Customer’s signature, electronic acceptance or unequivocal confirmation by email of a quotation or Sales Order constitutes a binding order for all Products and Services specified therein. Subject only to rights that cannot validly be excluded under mandatory law, the Customer has no contractual right to cancel, reduce, suspend, postpone or abandon an accepted order without VIANOVA’s prior written consent.

17.5.2 The Customer acknowledges that, in reliance on an accepted order, VIANOVA plans and reserves personnel, subcontractors, implementation capacity and other resources, may enter into binding commitments with third parties and may reject or postpone other customer engagements.

17.5.3 This Clause shall apply if:
(a) the Customer cancels, abandons or definitively prevents the performance of an accepted order;
(b) the Customer expressly or by its conduct refuses to continue with the agreed Products or Services;
(c) VIANOVA terminates the Agreement for a material breach attributable to the Customer; or
(d) the Customer’s failure to cooperate or respond continues beyond the applicable cure period under Clause 5.6 and VIANOVA consequently terminates the affected Agreement or Sales Order.

17.5.4 In the case of Products or Services for which a binding fixed price has been expressly agreed, VIANOVA shall be entitled to invoice:
(a) the remuneration attributable to all Products and Services already provided;
(b) all unpaid remuneration relating to completed or deemed-completed milestones;
(c) all costs, expenses, licences, subscriptions, hosting services, Third-Party Products and other commitments incurred or irrevocably entered into for the Customer;
(d) all reasonable suspension, demobilisation, remobilisation, collection and rescheduling costs; and
(e) as compensation for VIANOVA’s positive contractual interest, the remaining unpaid portion of the agreed fixed price.
The remaining unpaid portion of the agreed fixed price shall constitute the agreed starting point for calculating VIANOVA’s positive contractual interest. Deductions shall be made only to the extent required by mandatory applicable law for variable costs demonstrably saved by VIANOVA or for net income actually earned through the reasonable reallocation of resources specifically reserved for the Customer. Any amounts claimed under paragraphs (a) to (e) shall be calculated without double recovery.

17.5.5 In the case of Services provided on a time-and-materials basis, VIANOVA shall be entitled to invoice:
(a) all Services provided up to the effective termination date;
(b) all costs and expenses incurred or irrevocably committed;
(c) all reasonable suspension, demobilisation, remobilisation and rescheduling costs;
(d) the value of personnel and capacity specifically reserved for the Customer that could not reasonably be reassigned; and
(e) any further damages, loss of contribution margin or loss of profit recoverable under applicable law.
A budget, estimate or anticipated total amount shall not constitute a fixed price, minimum purchase obligation or guaranteed order value unless it is expressly designated as such in the applicable quotation or Sales Order.

17.5.6 If the Customer temporarily suspends or postpones the project, VIANOVA may suspend its own performance, reallocate the reserved resources and charge all resulting additional costs. If the Customer does not provide binding instructions to resume performance within thirty (30) calendar days after receiving written notice from VIANOVA, VIANOVA may terminate the affected Agreement or Sales Order and apply the consequences set out in this Clause.

17.5.7 All amounts payable under this Clause shall become due ten (10) calendar days after the relevant invoice or written payment demand. Upon expiry of that period, the Customer shall automatically be in default without any further reminder.

17.5.8 Any advance payments, instalments or other amounts already received may be retained and set off against VIANOVA’s claims under this Clause. VIANOVA reserves the right to claim any additional proven damage, provided that there shall be no double recovery.

17.5.9 The exclusions and limitations relating to loss of profit and consequential losses under Clause 13 shall not apply to payment obligations or claims by VIANOVA under this Clause 17.5.

17.5.10 This Clause is subject to any rights and restrictions that cannot validly be excluded or modified under mandatory Swiss law.

18. Insurance

VIANOVA shall maintain appropriate public liability and product liability insurance throughout the term of the Agreement.

19. Force Majeure

19.1 The parties shall be released from their obligation to perform Services under the Agreement if and for as long as the non-performance is attributable to circumstances of force majeure. Such circumstances include, by way of example, war, terrorism, strikes, civil unrest, epidemics, pandemics, expropriation, restrictions imposed by public authorities, power or internet outages, fire, storms, flooding, earthquakes, avalanches and other natural disasters, sabotage, DoS or DDoS attacks, cyberattacks, malware and ransomware.

19.2 Each party shall notify the other party immediately and in writing of the occurrence of an event of force majeure. If the cause cannot be remedied within a reasonable period, the parties shall consult with one another in order to find a mutually acceptable solution. If the circumstances of force majeure continue for more than ninety (90) calendar days, either party shall be entitled to terminate the Agreement in writing without observing a notice period.

20. Confidentiality

20.1 “Confidential Information” means all information concerning:
(a) the parties and their Affiliated Companies, including their trade secrets, know-how, operational organisation, operational processes, research, development or business activities, internal business operations, financial circumstances, customers and suppliers; and
(b) any other information, documents and data, irrespective of their form, that are designated as confidential, are recognisable as confidential or are confidential by their nature, and that are obtained from the other party pursuant to or in connection with the performance of obligations under the Agreement or disclosed during the provision or receipt of Products, whether before or during the term of the Agreement.

20.2 Each party undertakes to treat the other party’s Confidential Information as confidential and to protect it in the same manner as it protects its own confidential information, but in all cases with reasonable care. Neither party shall be responsible for the loss, delay, interception, corruption or alteration of emails resulting from a cause beyond that party’s reasonable control.

20.3 Each party agrees to use the other party’s Confidential Information solely for the purpose of fulfilling its respective obligations or exercising and enforcing its rights under the Agreement. Neither party may disclose such Confidential Information, in whole or in part, to third parties without the other party’s written consent. Employees of the parties and advisers or subcontractors who are bound by confidentiality obligations no less stringent than those set out herein shall not be deemed third parties.

20.4 The foregoing obligations shall not apply if the Confidential Information:
(a) is known to the recipient, without any confidentiality obligation, at the time of disclosure;
(b) is lawfully acquired by the recipient in good faith after the date of disclosure from an independent third party that is not subject to a confidentiality obligation in respect of such Confidential Information;
(c) is publicly available at the time of disclosure;
(d) is independently developed or created by the recipient and is not obtained as a result of a breach of these confidentiality obligations;
(e) is authorised for disclosure in writing by the party to which the Confidential Information relates; or
(f) must be disclosed pursuant to an order or decision of a competent court or administrative authority or under applicable statutory provisions, provided that the recipient gives the party to which the Confidential Information relates reasonable and timely notice and, at that party’s request, asserts an appropriate claim for confidential treatment in order to protect that party’s interests under applicable law.

20.5 Upon expiry or termination of the Agreement, each party shall, at the other party’s request, return all Confidential Information belonging to the other party. This shall not apply to copies of Confidential Information stored electronically as part of routine data backups or to Confidential Information, or copies thereof, that must be retained under applicable law, provided that such Confidential Information or copies remain subject to an indefinite confidentiality obligation in accordance with the terms set out herein.

21. Data Protection

21.1 Each party shall be responsible for complying with its obligations regarding the processing of personal data relating to natural persons under applicable data protection law.

21.2 Personal data relating to the Customer and its Affiliated Companies, and to the employees and clients of the Customer and its Affiliated Companies, to which VIANOVA has access or which VIANOVA processes in connection with the performance of its contractual obligations (“Customer Personal Data”), shall be processed by VIANOVA solely:
(a) on behalf of the Customer;
(b) in accordance with the Customer’s instructions;
(c) under the Customer’s responsibility; and
(d) for the exclusive purpose of providing the contractual Services.
VIANOVA shall implement appropriate technical and organisational measures in accordance with applicable Swiss data protection law to ensure the confidentiality and security of such Personal Data. VIANOVA grants the Customer the right to verify compliance with the applicable data protection obligations.

21.3 VIANOVA shall notify the Customer without delay of any breach of the security of Customer Personal Data and shall provide all relevant information relating to the breach.

21.4 VIANOVA shall be entitled to engage suitable subcontractors in Switzerland, Europe and, where applicable, other agreed countries, and to host and/or otherwise process Customer Personal Data in Switzerland, Europe and, where applicable, other agreed countries. VIANOVA shall inform the Customer in advance of any intended appointment of a subcontractor, including any changes or replacement of sub-processors. The Customer shall have the right to object to the appointment of a particular sub-processor if there are compelling reasons for doing so. If the Customer does not object within ten (10) calendar days after receiving the information from VIANOVA, the Customer’s consent shall be deemed granted.

21.5 If data are disclosed abroad, VIANOVA shall comply with the requirements of Swiss data protection law governing the transfer of personal data abroad.

21.6 VIANOVA undertakes to grant its employees and subcontractors access to Customer Personal Data only on a restricted basis and solely for the purpose of performing the Agreement.

21.7 The Customer shall be responsible for the lawful processing by VIANOVA and/or its subcontractors of Customer Personal Data processed on the Customer’s behalf and in accordance with its instructions. The Customer shall indemnify VIANOVA against third-party claims arising from the processing of such Personal Data by VIANOVA and/or its subcontractors in accordance with the Customer’s instructions and the Agreement.

21.8 The Customer shall be solely responsible for determining the purposes and means of processing Customer Personal Data. The Customer shall be responsible for ensuring compliance with the statutory information and access rights of the relevant data subjects. At the Customer’s request, VIANOVA shall assist the Customer in fulfilling data subject rights.

21.9 The Customer warrants:
(a) that Customer Personal Data are collected and processed in accordance with the applicable data protection provisions; and
(b) that the collection and processing of Customer Personal Data are appropriate, suitable and proportionate in relation to the purpose for which such Customer Personal Data are collected and processed.

21.10 To the extent required, the parties shall enter into separate data protection agreements.

22. References

VIANOVA shall use the Customer’s name and/or logo as a reference in its public marketing materials, including print advertising, websites and social media platforms, only with the Customer’s prior consent. Unless otherwise agreed, however, VIANOVA shall be entitled to include the Customer’s name and/or logo as a reference in internal documents and in quotations or proposals submitted to other customers.

23. Independent Parties

The parties enter into the Agreement as independent parties. The Agreement does not establish a simple partnership or any partnership-like relationship between the parties. Neither party shall be entitled to enter into obligations or assume liabilities on behalf of the other party unless the other party has given its prior written consent.

24. Non-Solicitation

Neither party may, during the term of the Agreement and for a period of one (1) year after termination of the Agreement, solicit or recruit employees of the other party as employees, consultants or in any other capacity without the other party’s express written consent. The parties acknowledge that a breach of this non-solicitation obligation may cause substantial harm to the other party. If a party nevertheless recruits an employee of the other party, the recruiting party shall pay the other party a transfer fee equal to sixty per cent (60%) of the relevant employee’s previous gross annual salary for each employee recruited. Payment of the transfer fee shall not release the recruiting party from its continuing obligation to comply with this non-solicitation provision. The right to assert claims for damages exceeding the amount of the transfer fee shall remain reserved.

25. Assignment

25.1 Neither party may assign or transfer its rights or obligations under the Agreement to a third party without the other party’s prior written consent. This restriction shall not apply to an assignment by VIANOVA, without the Customer’s consent, of its rights and obligations to a parent company, subsidiary or legal successor of VIANOVA that acquires all or substantially all of VIANOVA’s assets and business activities.

25.2 All provisions and conditions of these GTC and the Agreement shall be legally binding upon the parties and their legal successors.

26. Severability

The invalidity or unenforceability of one or more provisions of these GTC and/or the Agreement shall not affect the validity of the remaining provisions. Invalid or unenforceable provisions shall be replaced by a new provision that, from an economic and legal perspective, comes as close as possible to the parties’ intention in accordance with the objective and purpose of these GTC or the Agreement.

27. Survival

Any provision of these GTC and/or the Agreement that expressly or by its nature is intended to survive expiry or termination shall survive the expiry or termination of the Agreement.

28. Governing Law and Jurisdiction

28.1 These GTC and the Agreement shall be governed exclusively by the substantive laws of Switzerland, excluding its conflict-of-law provisions and the United Nations Convention on Contracts for the International Sale of Goods.

28.2 The ordinary courts of Basel, Switzerland, shall have exclusive jurisdiction over all disputes arising out of or in connection with these GTC and/or the Agreement.

Version dated: 4 August 2026